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Current Trends in Canadian Federalism. Centripetal and Centrifugal Forces in Canadian Division of Powers ERIKA ARBAN1 Summary

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Current Trends in Canadian Federalism. Centripetal and Centrifugal Forces in Canadian Division of Powers ERIKA ARBAN1 Summary Current trends in Canadian federalism. Centripetal and centrifugal forces in Canadian division of powers ERIKA ARBAN1 Summary: 1.Introduction; 2. Canadian Federalism and the division of legislative powers; 3. Judicial interpretation of the division of powers; 4. Level of (de)centralization of Canadian federalism; 5. Future changes in the division of powers; 6. Conclusions. 1. Introduction Canadian federalism is often described as the most decentralized in the world. This paper tries to identify elements of Canadian federalism which support and which go against this statement, to ultimately determine whether Canadian federalism is presently on a decentralizing (centrifugal) or centralizing (centripetal) course. As pointed out by Ronald Watts, in determining the level of (de)centralization of a given federal scheme, the first task becomes that of clarifying which powers we want to analyze. 1 L.L.M., University of Arizona; Ph.D. Candidate, University of Ottawa. 1 Centralization or decentralization can refer both to the legislative powers assigned to each level of government (federal or provincial in Canada), or to the role played by the various components in federal decision making.2 Also, we can analyze the level of (de)centralization by looking at the administrative bodies in a federal state and how federal institutions are more or less present locally. In this paper, however, I will focus only on the level of (de)centralization in the distribution of legislatives powers between federal Parliament and provincial legislatures in Canada as stemming from the Canadian Constitution and as shaped by the decisions of the Privy Council (hereinafter, “P.C.”) and the Supreme Court of Canada (hereinafter, “SCC”). It is true that Canadian federalism is often defined as one of the most decentralized in the world. But in order to explore the real extent of this allegation, it is necessary to look beyond the content of the Canadian Constitution. Sections 91 and 92 of the Constitution Act, 1867 list the legislative powers that the Founding Fathers assigned to the federal and the provincial legislatures respectively. But a mere reading of these provisions does not help to fully understand how legislative powers are distributed in Canada. We also need to turn to the interpretation of these provisions rendered by constitutional judges (both the P.C. and the SCC) over the time. Canadian federalism (or the interpretation given by judges to it) has gone through various stages, shifting its course from the federal to the provincial side and vice versa depending on the specific historical, economic, and political setting. If judges of the P.C. in the 1920s were unanimously in favour of granting more power to provincial legislatures, thus pushing back federal legislative intervention, in the 1970s (especially when Bora Laskin was Chief Justice of the SCC) there was a shift back to the center. At this time, we witnessed two clearly antonymic positions: that in favour of federal government assumed by Laskin C.J. (an Ontarian Jewish) and that in favour of provincial power embodied by Beetz, J. (a Franco-Quebecer Catholic). The most recent trend of the SCC, however, seems to have 2 Ronald L. Watts, Comparaison des régimes fédéraux, 2nd edition, Montreal and Kingston, 2002, p. 73 2 slightly departed from this dualism in an attempt to keep a delicate balance between the two legislative poles. My analysis will start with an overview of Canadian federalism and the division of powers as contained in the Constitution Act, 1867. I will then identify some of the most relevant federal and provincial “head of powers” and show how the judicial decisions of the courts have contributed to shape the Canadian separation of powers from that of “watertight compartments” of the 1920s to a more flexible trend, where courts allow (at certain conditions) one power to “invade” the sphere of competences of the other. I will point out how some federal powers (specifically, the federal spending power and the residual powers) are extremely controversial because of their broad scope, and this have brought provinces to call for a restriction of these powers that would otherwise grant the federal almost unlimited legislative jurisdiction. Next, I will explain the doctrines elaborated by the courts to interpret constitutional provisions (specifically, the doctrines of pith and substance, federal paramountcy, and interjurisdictional immunity). In my conclusion, I will argue that Canadian federalism is probably in a centrifugal course. Indeed, many elements can be used to confirm the point: the interpretative doctrines used by the courts work as a restraint to the otherwise very broad federal jurisdiction; also, the current trend of the SCC in deciding cases appears to be quite neutral if compared to the previous positions in favour of one level of government or the other which characterized past decisions; if nothing else, a quite diffuse acknowledgement on the part of Ottawa that not only Quebec but also western provinces are particularly sensible to how legislative powers are interpreted. However, the above elements are not enough. Canadian federalism appears particularly interesting (as well as controversial) because of this continuous struggle that courts and governments 3 alike are constantly facing in trying to keep some balance in the delicate equilibrium between federal and provincial jurisdictions. 2. Canadian Federalism and the division of legislative powers Canadian federalism was the legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today. The federal-provincial division of powers was the legal recognition of this diversity. It helped to accommodate diversity by granting significant powers to provincial governments. As such, federalism was the political mechanism by which diversity could be reconciled with unity.3 Federalism has been identified by the SCC as one of the unwritten principles of Canadian constitutional system, along with democracy, constitutionalism and the rule of law, and protection of minorities.4 The Canadian Constitution defines the types of laws that may be enacted by the federal parliament and those that may be enacted by the provinces.5 The basic division of powers is contained in sections 91 and 92 of the Constitution Act, 1867, which is the primary textual expression of the principle of federalism in Canadian Constitution agreed upon at Confederation.6 Some of the most important powers assigned by s. 91 to the federal Parliament have economic nature: public debt and property; trade and commerce; transportation and communication; direct and indirect taxation; banking. Also, federal parliament was granted legislative powers over marriage and divorce; criminal law, as well as the power to make laws for the peace, 3 Reference re Secession of Quebec, [1998], 2 S.C.R. 217, §43 4 Secession reference, cit., §55 5 Peter Hogg, Constitutional Law of Canada, Toronto, 2009 (student edition) § 15(1) 6 Secession reference, cit., §47 4 order, and good government of Canada (i.e. “p.o.g.g.” powers). Conversely, provinces retained legislative powers over direct taxation within the provinces; incorporation of companies with provincial objects; property and civil rights in the province; all matters of local and private nature in the province; and local works and undertakings, among others. Also, provinces have exclusive jurisdiction over education. Agriculture and immigration, on the other side, are subject matters of shared jurisdiction between federal and provincial legislatures. By judicial interpretation, environment is also considered a subject matter of shared jurisdiction.7 Although it did not bring significant changes to the federal-provincial division of powers as described above, the Constitution Act, 1982 introduced the constitutional amending formula (contained in ss. 38-49, or Part V) that was missing in the Constitution Act, 1867. S. 38(3) of the Constitution Act, 1982, provides that provinces can opt out of a constitutional amendment that derogates from that province’s powers, rights or privileges, and that is unacceptable to them.8 Also, s. 40 of the 1982 Constitution imposes upon the federal government an obligation to compensate any province that has opted out of an amendment transferring provincial legislative powers on education and other cultural matters from the provincial legislatures to the federal Parliament. I will now proceed with the analysis of some of the most controversial federal and provincial powers. a. The general power: laws for the peace, order, and good government S. 91 of the Constitution Act, 1867, reserves to the federal government the power to “...make laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces...”. These powers are commonly referred to as “residuary powers” and are also known as 7 See 114957 Canada Ltd. (Spraytech) v. Hudson [2001], 2 S.C.R. 241. 8 Hogg, Constitutional Law, cit., §4(3)(d) 5 “p.o.g.g.” powers. Along with the federal spending power, the p.o.g.g. power is one of the most controversial in the balance between federal and provincial jurisdiction. During the 1920s, the P.C. used to construe the p.o.g.g. powers in a very limited way, consistently with the trend that valorized provincial powers and pushed back federal intervention.9 The initial rigidity in the interpretation of section 91 was later relaxed, especially in the 1960s and 1970s, when the SCC in the Anti-Inflation Act outlined the new test for p.o.g.g. powers.10 This decision is very interesting also because it shows the tensions within the SCC between Laskin C.J. (who favoured further extension of the p.o.g.g. powers) and Beetz C.J. (who thought that, by loosening too much the p.o.g.g. powers, there was a risk that the federal government would invade areas of provincial competence).
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